Makokha v Omondi & 2 others (Environment and Land Case E169 of 2025) [2025] KEELC 8121 (KLR)

5. That the 3rd respondent be and is hereby restrained from processing, registering, or efiecting ant transactions related to the suit property pending the determination of this suit. 6. That the OCS Kilimani Police Station or any other law enforcement agency ensure compliance with these orders. 7. That costs of this application be on cause. 2. The application is premised on the grounds inter alia that the late Raphael Charles Makokha is the registered owner of the land known as LR. No. 2/241 passed away on 30th April, 2013. The application is further supported by the afidavit of the plaintifi/applicant sworn on even date. The plaintifi/ applicant deposed that she is the widow of Raphael Charles Makokha who died intestate on 30th April 2013. She deposed that following the demise of the late Raphael, and together with the 2nd defendant/ respondent, they were appointed administrators of the estate. That contrary to the express provision of the orders of the court issued in Succession Cause No. 106 of 2014, the 2nd defendant/respondent continued to collect rent from tenants until February 2016 when the tenants vacated the suit property. 3. The plaintifi/applicant deposed that on 27th June, 2023, the 2nd defendant/respondent filed an afidavit in the Succession Cause stating that the suit property ceased forming part of the estate of the deceased, and that it was transferred to the 1st defendant/respondent. She deposed that the registration of transfer of the suit property in 2016 in the name of the 1st defendant/respondent by the 3rd defendant/ respondent after the death of the deceased and prior to the confirmation of grant is null and void. The plaintifi/ applicant deposed that the entries made on 26th August, 2016 were efiected illegally, unprocedurally and fraudulently by the defendants/respondents. 4. The plaintifi/applicant further deposed that the suit property is an income generating asset, and that its loss would cause irreparable harm to the estate. Further, that the property bears sentimental attachment to the children and the family, and allowing the 1st defendant/respondent to continue deriving any benefit from an illegality would be a mockery to the rule of law and the principles of equity. 5. The 1st defendant/respondent filed his replying afidavit sworn on 6th June, 2025. He deposed that he is the registered owner of the suit property having purchased the same from the deceased on 22nd January, 2009 at a consideration of Kshs.80,000,000/-. Further, that the process of transfer was initiated by the deceased prior to his death and completed after his death. The 1st defendant/respondent deposed that upon purchase of the suit property, they executed a conveyance which was lodged for registration and stamp duty paid in the year 2009. He deposed that the transfer was not registered owing to a subsisting charge in favour of East Africa Building Society. 6. The 1st defendant/respondent deposed that in the year 2012, the deceased lodged an executed discharge of charge which was registered on 28th April, 2015. Further, that following the letters of grant of administration, the 2nd defendant/respondent unknowingly collected rent from his tenant but she later refunded. That since the purchase of the suit property, he has been paying all the rates due to the county government. 7. The 2nd defendant/respondent filed her replying afidavit sworn on 30th May, 2025. The 2nd defendant/ respondent deposed that she has no interest in the suit property, and that she did not participate in the transfer and registration of the 1st defendant/respondent as the owner of the said property. Further, that some of the issues were raised in Busia HC P & A No. 106 of 2014 which was determined. The 2nd defendant/respondent deposed that she has never breached any fiduciary trust bestowed on her, and that the instant application is misconceived and incompetent ab initio. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8121/eng@2025-11-25 2

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8. The 1st defendant filed the notice of preliminary objection dated 3rd June, 2025 challenging the said application on the following grounds:1. The entire suit as filed is defective and bad in law. 2. This honourable court lacks the requisite jurisdiction to entertain the instant suit as the cause of action is about probate and administration of an estate of a deceased. 3. If the contents of paragraph 14,15,16,17 and 18 of the Plaintifi’s plaint were to be believed, then it is not in doubt that the dispute herein is about administration of an estate of a deceased person which squarely falls within the jurisdiction of the probate court. 4. The suit as it is, is unmeritorious as the threshold to grant the prayers sought cannot be met. 5. The suit as filed is premature, non-starter and if anything is an abuse of the court process. 9. The application and the objection were canvassed by way of written submissions. The plaintifi/ applicant filed her written submissions dated 20th June, 2025. With regard to the preliminary objection, the plaintifi/applicant submitted that it ofiends the trite law that an objection must raise a pure point of law and which should be based on uncontested facts. She relied on the case of Mukhisa Biscuit Manufacturing Ltd v West End Distributors Ltd [1969] EA 696. She submitted that the remedies sought in the plaint fall squarely within the jurisdiction of this court as it relates to ownership, occupation and title to land. Further, that the matter in Busia High Court did not determine the legality of transfer or ownership. She submitted that the issues in this suit are live, justiciable and not res judicata. Reliance was placed in the cases of Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] KESC 8 (KLR) and Christopher Orina Kenyariri t/a Kenyariri & Associates Advocates v Salama Beach Hotel Limited & 3 others [2017] KECA 578 (KLR). 10. The plaintifi/applicant further submitted that she has sued the 2nd defendant/respondent not in her capacity as a co-administrator but as an intermeddler and a facilitator of fraud. To further buttress on this submission, the plaintifi/applicant relied on the cases of Koinange & 2 others (Suing as Administrators of the Estate of the Late Charles Karuga Koinange) v Mitithiru Company Limited [2024] KEELC 1414 (KLR), and Boskwony v Biwott & 5 others [2023] KEELC 20100 (KLR). 11. With regard to her application, the plaintifi/applicant submitted that the same ought to be allowed owing to the 1st defendant/respondent’s failure to file any replying afidavit and the inadequate and evasive response by the 2nd defendant/ respondent. She relied on the cases of Re Estate of Job Ndunda Muthike (deceased) [2018] KEHC 3138 (KLR), Kenya Akiba Micro Financing Limited v Ezekiel Chebii & 14 Others [2012] KEHC 5590 (KLR), Konchellah v Sunkuli & 2 others [2018] KESC 58 (KLR), and Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another [2014] KECA 642 (KLR). 12. While further relying on the cases of Giella v Cassman Brown & Co. Ltd (1973) EA 358, American Cynamid Co. v Ethicon Limited (1975) AC 135, Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] KECA 606 (KLR) and Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR), the plaintifi/applicant submitted that she has presented a strong prima facie case based on the compelling evidence on illegal transfer of the suit property. 13. The 1st defendant/respondent filed his written submissions dated 23rd June, 2025 where he raised two issues for determination:1. Whether this honourable court should uphold the 1st defendant’s notice of preliminary objection dated 3rd June, 2025; and https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8121/eng@2025-11-25 3

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2. Whether the plaintifi’s notice of motion application dated 4 April, 2025 is meritorious. 14. On the first issue, the 1st defendant/respondent submitted that the objection meets the legal threshold enunciated in the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696. He submitted that the suit raises a pure point of law as the suit as filed ofiends Section 79 and 82 of the Law of Succession Act. He relied on the cases of Republic v Nairobi City Council & 3 others Exparte Christine Wangari Gachege Suing on behalf of the Estate of Rahab Wanjiru Evans [2014] eKLR, and Attorney General & another v Andrew Maina Githinji & another [2016] eKLR. 15. On the second issue, the 1st defendant/respondent submitted that the application is without merit. While relying on the cases of Giella v Cassman Brown & Co. Ltd [1973] EA 358, and Ondieki v Ndusi (Environment and Land Appeal E024 of 2021) [2022] KEELC 12778 (KLR) (4 October 2022) (Judgment), he submitted that the plaintifi/applicant did obtain interim orders to preserve the property from the probate court in Busia which orders are still subsisting the implication that the suit property is not in danger of being wasted. 16. The 2nd defendant/respondent filed her written submissions dated 10th July, 2025. She submitted that joint administrators of the estate of a deceased must act jointly in bringing any suit on behalf of the said estate. She further submitted that the plaintifi/applicant lacks capacity to institute this suit due to lack of consent by her co-administrators. Further reliance was placed in the cases of Theresa Wanjiro (Suing as the Administrator of the estate of Joseph Gichuki Riunge v Andrew Kimata Gachanga & another; George Mwai Mburu (3rd party) [2021] eKLR, Kimani & 2 others (Suing as the Legal Representatives and Beneficiaries of the Estate of the late Paul Kimani Muna) v Njeri & 3 others (Environment and Land Judicial Review Case E002 of 2023) [2024] KEELC, and Migwi (Suing on His own and also on Behalf of the Estate of Migwi Mariga-deceased) v Ngunjiri & another (Environment & Land Case E044 of 2023) [2024] KEELC 476 (KLR) (6 February 2024) (Ruling). 17. In conclusion, the 2nd defendant/respondent urged the court to find that the plaintifi lacks capacity, and that the suit is defective and incompetent. 18. I have considered the application, the preliminary objection, the replies thereof and the written submissions filed by the respective parties. I am of the view that the issue for determination are as follows:- 19. a. Whether the notice of preliminary objection has merit; and b. Whether temporary orders of injunction ought to issue pending the determination of the suit. Law, JA. in Mukisa Biscuits Manufacturing Company Limited -vs- West End Distributors (1969) EA 696 stated as follows:“ So far as I am aware, a preliminary objection consists of a point of law which has been pleaded or which raises by clear implication out of pleadings, and which if argued as a preliminary point, will dispose of the suit. Examples are an objection to jurisdiction of the court, a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the matter to arbitration...” 20. Also, the case of John Musakali vs. Speaker County of Bungoma & 4 others (2015) eKLR, it was held that:“ The position in law is that a preliminary objection should arise from the pleadings and on the basis that facts are agreed by both sides. Once raised the preliminary objection should https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8121/eng@2025-11-25 4

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have the potential to disposing of the suit at that point without the need to go for trial. If, however, facts are disputed and remain to be ascertained, that would not be a suitable preliminary objection on a point of law.” 21. Further, Ojwang J (As he then was) in Oraro -vs- Mbaja (2005) KLR 141 where after quoting the statement of Law, JA. in the Mukisa Biscuits case (supra) went on to state that:“ A 'preliminary objection' correctly understood is now well defined as and declared to be a point of law which must not be blurred by factual details liable to be contested and in any event, to be proved through the process of evidence. Any assertion which claims to be a preliminary objection, yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed. Where a court needs to investigate facts, a matter cannot be raised as a preliminary point.... Anything that purports to be a preliminary objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence...” 22. From the above cited authorities, it is clear that for a preliminary objection to succeed, the same must consist of a pure point of law, with the facts not disputed by the opposing party. Also, a preliminary objection should possess the ability to dispose of the issue that is before court without going to trial and lastly, the same ought to stem from and not outside of pleadings. 23. Having looked at the preliminary objection as drafted, the same does not raise pure points of law. Grounds 1, 3, 4 and 5 are contested and in my view would require evidence to ascertain its veracity. The only ground that raises a pure point of law is ground 2 which argues that this court lacks jurisdiction to entertain the suit as the cause of action is about probate and administration of an estate of a deceased person. 24. It is trite law that jurisdiction is everything, and without it, the court cannot make any one more step to deal with an issue or a matter that it has no jurisdiction over, and in any case, the resultant efiect would be that all proceedings emanating therefrom would be a nullity. However, I am not persuaded that this court lacks jurisdiction to determine the suit. In the undated plaint filed by the plaintifi, she seeks the following orders:a. An order of permanent injunction restraining the 1st defendant herein whether by himself, his agents, servants, employees, invitees , and/or otherwise whomsoever from entering upon or trespassing, ofiering for sale, selling, disposing of, charging, sub-dividing, dealing, alienating, occupying, managing, letting or otherwise using, residing and remaining or representing to any person that he is the duly registered owner or in any manner whatsoever from interfering with the proprietary rights of the estate of Raphael Charles Makokha over all that piece of land known as Land Reference No. 2/241 Nairobi Gitanga Road. b. A declaration that the late Raphael Charles Makokha is the legitimate and registered owner of parcel of land known as Land Reference No. 2/241 Nairobi Gitanga Road. c. A declaration be and is hereby issued that the 1st and 2nd defendants intermeddled with the estate of Raphael Charles Makokha in respect of the transfer of Land Reference No. 2/241 Nairobi, Gitanga Road to the 1st defendant herein. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8121/eng@2025-11-25 5

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d. An order directing the 3rd defendant to rectify the register in respect of all that property known as Land Refenrece No. 2/241 Nairobi, Gitanga Road and cancel entry No. 20 made on 26th August, 2016 in favour of the 1st defendant herein and all other subsequent entries. e. An order do issue directing the 3rd defendant to rectify the register of all that property known as Land Reference No. 2/ 241 Nairobi, Gitanga Road and register the owner as the Late Raphael Charles Makokha. f. An order do issue directing the 1st defendant to submit the certificate of title it holds for all property known as Land Reference No. 2/241 Nairobi, Gitanga Road to the 3rd defendant herein within 14 days of the judgment of the court for cancellation. g. An order do issue directing the 1st and 2nd defendants to pay to the Estate and to account for all rental income received from the suit property from 26th August 2016 to date. h. An award of general damages against the defendants for harm caused by their unlawful conspiracy and fraudulent actions. i. Costs of the suit to be borne by the defendants. 25. In the plaint, the plaintifi further pleaded acts of fraud, unlawful and unprocedural acts with regards to the transfer of the suit property. From the pleadings, and the prayers sought, this court has jurisdiction to hear and determine the suit. For this reason, the notice of preliminary objection fails. 26. On the second issue, the conditions for consideration in granting an injunction were settled in the celebrated case of Giella v Cassman Brown & Co. Limited (1973) EA 358, where the court expressed itself on the condition’s that a party must satisfy for the court to grant an interlocutory injunction as follows:“ Firstly, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise sufier irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.” 27. The plaintifi/applicant argued that the suit property belongs to her late husband who passed away on 30th April, 2013, and that contrary to the express orders of the court issued in Succession Cause No. 106 of 2014, the 2nd defendant/respondent continued to collect rent until August, 2016. The arguments advanced by the plaintifi/applicant challenge ownership of the 1st defendant/respondent on grounds that the same was done after the demise of her husband which amounts to intermeddling with the estate of the deceased among other issues. 28. The 1st defendant/respondent contended that he is the owner of the suit property having acquired the same from the late Raphael prior to his demise through an agreement sometime in the year 2009. The 2nd defendant/respondent maintained that she has no interest in the suit property, that she did not participate in the registration and transfer of the same, and that the issues raised herein were also raised in Busia HC P&A No. 106 of 2014. 29. In a bid to determine whether the plaintifi/applicant has met the grounds for grant of temporary orders of injunction, I carefully perused the documents annexed in her supporting afidavit. My attention was drawn to the ruling delivered by the High Court in Busia on 15th October, 2024. In this ruling, https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8121/eng@2025-11-25 6

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the court granted prayer (h) to the efiect that the interim order for the preservation of LR. No. 2/241 Nairobi Gitanga Road shall remain in force, until other or further orders. 30. Paragraph 32 of the said ruling stated as follows:“ LR. No. 2/241 Nairobi Gitanga Road has never been registered in the name of the deceased, and the material on record points to the deceased having sold his interest in it in 2009 to Hesbon Omondi” 31. From the ruling, and having looked at the annexures, there is no title showing that the deceased was the registered proprietor of the suit property besides the oficial search. The same record indicates that the 1st defendant/respondent is the owner of the suit property. More so, the plaintifi/applicant has not established any proof that she benefited directly from the proceeds of the rent, if any, that would prove substantial loss on her part and the children of the deceased. In my view, the plaintifi/applicant has not established a prima facie to enable the court’s intervention at this stage. The contentions raised over the suit property challenging the ownership of the property by the late Raphael and the 1st defendant/ respondent are best fit to be tried during the hearing. There is no proper ground (s) that have been proven that merit injunctive relief. 32. Let me also add that the high court issued orders as stated in paragraph 29 above, which I find suficient in these proceedings. Until the orders are set aside, this court has no business interfering with the same. 33. For this reason, the notice of motion dated 4th April, 2025 and the notice of preliminary objection dated 3rd June, 2025 lack merit and they are both dismissed. Each party shall bear its own costs. Orders accordingly. DATED, SIGNED & DELIVERED VIRTUALLY THIS 25TH DAY OF NOVEMBER, 2025. ......................................................... HON. MBOGO C.G. JUDGE In the presence of: Mr. Benson Agunga - Court Assistant Mr. Odiwuor holding brief for Ms. Mary Sheila Onyango for the Plaintifi/Applicant Mr. Pius Boaz Agutu for the 1st Defendant /Respondent https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8121/eng@2025-11-25 7

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